On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment NoS. 07-02-0456 and 07-02-0457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 13, 2011
Before Judges Axelrad, Lihotz and J. N. Harris.
Defendant Larry Peppers appeals from his conviction and sentence. We reverse and remand for a new trial.
Tried to a jury, defendant was acquitted of murder and found guilty of the lesser-included offense of first-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). He was also found guilty of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Immediately following this verdict, defendant was convicted by the same jury on another indictment for second-degree unlawful possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7(b).
The court granted the State's motion for an extended term of imprisonment. It merged defendant's conviction for possession of a weapon for an unlawful purpose with the manslaughter conviction and sentenced defendant to a twenty-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a concurrent five-year term on the conviction for unlawful possession of a handgun. It also sentenced defendant on the second indictment to a consecutive five-year custodial term, for all of which defendant was parole ineligible. See N.J.S.A. 2C:39-7(b). Appropriate fines and penalties were also imposed by the court.
On appeal, defendant asserts the following arguments through counsel:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENTS MADE BY THE DEFENDANT WHILE HE WAS SUBJECTED TO CUSTODIAL INTERROGATION AND WITHOUT HAVING BEEN ADVISED OF HIS MIRANDA*fn1 WARNINGS.
POINT II THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE FROM ELICITING HIGHLY RELEVANT AND POTENTIALLY EXCULPATORY TESTIMONY BASED UPON THE DEFENSE'S FAILURE TO ABIDE BY ITS DISCOVERY OBLIGATIONS.
POINT III THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS OCCURRING 15 AND 9 YEARS PRIOR TO TRIAL WERE ADMISSIBLE TO ATTACK CREDIBILITY.
POINT IV THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (NOT RAISED BELOW).
POINT V THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WITH RESPECT TO INDICTMENT NO. 07-02-457 AS A RESULT OF THE MANNER IN WHICH THE TRIAL COURT CONDUCTED THE PROCEEDING WHICH RESULTED IN THE JURY HEARING THE NATURE OF THE DEFENDANT'S PRIOR CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE NARCOTICS WITHIN A SCHOOL ZONE (NOT RAISED BELOW).
POINT VI THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant asserts the additional arguments in a pro se brief:
POINT I DEFENDANT CONTENDS THAT THE IDENTIFICATION PROCEDURES USED WERE UNDULY SUGGESTIVE AND RESULTED IN AN UNRELIABLE IDENTIFICATION. FAILURE OF THE POLICE TO CONTEMPORANEOUSLY MEMORIALIZE THE MULTIPLE IDENTIFICATION PROCEDURES USED VIOLATED STATE ...